SAFEWAY STORES INC v. NEST KART (1976)

Nest-Kart, a division of Folding Carrier Corporation, appeals from an order granting the motion of Safeway Stores, Inc. for a judgment of contribution.

Plaintiff Rita Elliot filed a complaint for personal injuries against Safeway and Nest-Kart, alleging that a shopping cart broke and fell on her foot. Safeway cross-complained for implied indemnity against Nest-Kart. Another defendant, Technibilt Corporation, was exonerated by the jury and is not a party to this appeal. The jury returned a verdict against both Safeway and Nest-Kart. The Jury also rendered a special finding. It found Safeway to be liable on theories of negligence and strict liability, and Nest-Kart to be liable on the theory of strict liability. The jury then determined the proportion of fault to be 80 percent attributable to Safeway and 20 percent to Nest-Kart. The judgment was satisfied by Safeway and Nest-Kart on an 80–20 ratio. Safeway then moved for an order to increase Nest-Kart's contribution by 30 percent. This motion was granted, resulting in an equal apportionment of the judgment. It is from this order that Nest-Kart appeals.

The court granted judgment in favor of Nest-Kart on Safeway's cross-complaint for implied indemnity. No appeal has been taken from this judgment.

The issue presented here is whether the doctrine of comparative negligence, as held to apply in California in the case of Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, should be expanded to require contribution in proportion to fault by tortfeasor judgment debtors.

Code of Civil Procedure section 876 requires that the ‘pro rata share of each tortfeasor judgment debtor shall be determined by dividing the entire judgment equally among all of them.’ On the basis of this statute, Safeway and Nest-Kart as tortfeasor judgment debtors are required to share equally in payment of the judgment here. Appellant urges that the literal requirements of Code of Civil Procedure sections 875 and 876¹ should be modified in light of Li v. Yellow Cab Co. Respondent counters that the right of contribution is fixed by statute, and that such right cannot be altered by the judicial adoption of the comparative negligence doctrine. We agree.

In Li, the Supreme Court abolished the rule of contributory negligence in California, and replaced it with a doctrine of ‘pure’ comparative negligence. (Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 828–829, 119 Cal.Rptr. 858, 532 P.2d 1226.) The court's decision was based upon a reexamination of the principle of contributory negligence, including its common law and statutory sources. The court concluded that ‘the ‘all-or-nothing’ rule of contributory negligence can be and ought to be superseded by a rule which assesses liabiliity in proportion to fault.' (13 Cal.3d at p. 810, 119 Cal.Rptr. at p. 862, 532 P.2d at p. 1230.) However, the court expressly chose not to resolve the issue of how comparative negligence will affect contribution and indemnification rights among joint tortfeasors, nor did it decide how the doctrine should operate in multiple party suits. (13 Cal.3d at pp. 823, 826, 119 Cal.Rptr. 858, 532 P.2d 1226.) In discussing some of these unresolved problems, the Li court stated (at p. 823, 119 Cal.Rptr. at p. 872, 532 P.2d at p. 1240), ‘Problems of contribution and indemnity among joint tortfeasors lurk in the background.’ It is with one of those lurking problems that we are now confronted. No post-Li case has squarely addressed the issue presented here.

Initially, it should be noted that the parties do not contend that the Li decision abrogated the well-established rule of joint and several liability of tortfeasors, viz.: “Contributory wrongdoers, whether joint tortfeasors or concurrent or successive tortfeasors, are ordinarily jointly and severally liable for the entire damage. . . . [¶] Hence, when they are joined in an action it is improper to apportion compensatory damages among them; judgment for the full amount should be rendered against each.' (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 35, p. 2333, and see authority there collected.)'

In the absence of California case law on the subject, it appears appropriate to review authorities from other jurisdictions and determine what other courts have done in analogous situations.

At common law there was no right of contribution among successive or concurrent joint tortfeasors. (Merryweather v. Nixan (1799) 8 Term.Rep. 186, 101 Eng.Rep. 1337; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 43, pp. 2344–2345.) The rule was gradually changed by either case law or statute, so that a great number of jurisdictions now recognize some form of contribution among tortfeasors. (Prosser, Law of Torts (4th ed. 1971) § 50, pp. 305–308.) Prior to the advent of the comparative negligence doctrine, the right to contribution was generally applied so as to create an equal sharing of the burden; that is, if there were two tortfeasors, each contributed one-half; if there were three, each contributed one-third. This is the method of apportionment adopted in California in 1957 when a contribution statute was enacted, entitled ‘Releases From and Contribution Among Joint Tortfeasors.’ (Code Civ.Proc., § 875 et seq.) As Schwartz points out in his treatise on comparative negligence, the equal division system has the virtue of simplicity, but it is not congruent with the general comparative negligence goal of apportioning damages according to fault. (Schwartz, Comparative Negligence (1974) § 16.7, p. 261.) Thus, several jurisdictions, in implementing a system of comparative negligence, have enacted statutes which provide for contribution among tortfeasors based upon the proportionate fault of each. (See e. g. Minn.Stat.Ann., § 604.01, subd. 1; N.J.Stat.Ann., §§ 2A:15–5.2, subd. b, 2A:15–5.3; Tex. Vernon's Civ.Stat., art. 2212a, § 2; see gen. Schwartz, supra, at pp. 261–264.)

Two jurisdictions have adopted a comparative contribution method of apportionment by judicial decision. These jurisdictions, Wisconsin and Maine, however, unlike California, had developed a common law rule of contribution among tortfeasors. (See Bielski v. Schulze (1962) 16 Wis.2d 1, 114 N.W.2d 105; Packard v. Whitten (Maine 1971) 274 A.2d 169.) With adoption in those states of comparative negligence statutes, the courts could without difficulty judicially promulgate a comparative contribution rule.

The court in Li held that Civil Code section 1714² did not preclude an interpretation that it meant comparative negligence. The decision rested on the interpretation of a statute which was susceptible of more than one meaning. Unlike section 1714, there could be no question as to the meaning of Code of Civil Procedure sections 875 and 876. The right of contribution, as therein set forth, is purely statutory in origin and does not purport to be a codification of any common law. We find no basis for a judicial modification of the clear language and intent of the present contribution statutes.

Section 875, subdivision (b) provides that the right of contribution ‘shall be administered in accordance with the principles of equity.’ This provision has been applied to determine that two joint tortfeasors would be permitted to share a judgment as a unit equally with a third joint tortfeasor. (Ramirez v. Redevelopment Agency (1970) 4 Cal.App.3d 397, 84 Cal.Rptr. 356.) Ramirez is of no assistance to appellant, in that its holding is limited to acknowledging the right of the court to consolidate, in equity, two or more parties as a unit who will share equally with other tortfeasors. We do not conceive that the Legislature intended by this section to permit judicial nullification of the express provisions of section 876, subdivision (a) requiring the division of the entire judgment to be equal.

Both parties argue the effect of the jury finding of negligence and strict liability on the part of Safeway and strict liability on the part of Nest-Kart. Nest-Kart urges that based on this special finding the parties are not in pari delicto, and that justice and equity will be served by denying contribution to Safeway. Nest-Kart cites Ramirez v. Redevelopment Agency, supra, 4 Cal.App.3d 397, 84 Cal.Rptr. 356, and Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 38 Cal.Rptr. 490. The Herrero court stated (at p. 74, 38 Cal.Rptr. at p. 493): ‘The duty to indemnify may arise, and indemnity may be allowed in those fact situations where in equity and good conscience the burden of the judgment should be shifted from the shoulders of the person seeking indemnity to the one from whom indemnity is sought. The right depends upon the principle that everyone is responsible for the consequences of his own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him. Thus the determination of whether or not indemnity should be allowed must of necessity depend upon the facts of each case.’ Nest-Kart appears to be confusing indemnity and contribution. Indemnity imposes the entire loss on one of two or more tortfeasors, as distinguished from contribution which distributes the loss equally among them. (4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 50, p. 2349; Herrero v. Atkinson, supra, 227 Cal.App.2d at p. 73, 38 Cal.Rptr. 490.) Therefore, if indemnity were at issue, Safeway would be entitled to 100 percent indemnification from Nest-Kart or nothing at all. There is no authority for the apportionment of damages between indemnitee and indemnitor.

Safeway, in response to Nest-Kart's argument properly cites Barth v. B. F. Goodrich Tire Co. (1971) 15 Cal.App.3d 137, 92 Cal.Rptr. 809, for the proposition that where a manufacturer is held strictly liable for a defect in a tire and a retailer is held negligent for improper installation, an order of contribution as joint tortfeasors is appropriate. In such case, however, the parties are joint tortfeasors albeit the legal basis of their liability is different, that is, one for negligence and the other for strict liability in tort. So, too, in the instant case the parties are joint tortfeasors in the same manner. Apportionment is therefore proper. As noted before, however, the judgment in favor of Nest-Kart on the indemnity cross-complaint has not been appealed. Therefore, determination that Safeway is not entitled to indemnity is final.

Furthermore, in the action on the complaint, the special findings determined that both Safeway and Nest-Kart were liable in strict liability in tort, and Safeway on the additional ground of negligence. As a result, the parties are joint tortfeasors and subject to the rules of contribution of tortfeasor judgment debtors.

The issue presented here could not be decided favorably to Nest-Kart without an evaluation of several other corollary problems. If it would be fair, as urged by Nest-Kart, to apportion fault among named tortfeasors, it would also be fair to permit, perhaps to require, a named defendant to bring in unnamed defendants to share in the burden of a judgment. As Prosser states in his article, Comparative Negligence (1953) 41 Cal.L.Rev. 1, 33: ‘The only completely satisfactory method of dealing with the situation (of multiple parties) is to bring all the parties into court in a single action, to determine the damages sustained by each, and to require that each bear a proportion of the total loss according to his fault.’ However, such a right does not exist in California. (Fleming, Comparative Negligence at Last—By Judicial Choice (1976) 64 Cal.L.Rev. 239, 253; Comment, Joint Tortfeasors: Legislative Changes in The Rules Regarding Releases and Contribution (1958) 9 Hast.L.J. 180, 188–189; see also Code Civ.Proc., §§ 379, 428.10.) It also would be necessary to modify the section of the Code of Civil Procedure dealing with a defendant who entered into a good faith settlement before trial. (Code Civ.Proc., § 877.) In fairness to the remaining defendants, that good faith settlement should not be permitted to interfere with the remaining defendants' right to pay only their share of any judgment based upon their proportionate fault. The validity of section 877 was considered in Stambaugh v. Superior Court (1976) 62 Cal.App.3d 231, 132 Cal.Rptr. 843. There the court held that Li does not modify ‘the rule so clearly announced by section 877.’ This statute continues to state the law of California. (62 Cal.App.3d at p. 236, 132 Cal.Rptr. at p. 846.) So, too, do Code of Civil Procedure sections 875 and 876, in the absence of legislative modification, continue to state the law of California.

Judgment of contribution is affirmed.

I concur in the judgment, but am concerned that a portion of the opinion might be read to imply approval of allocation of damages for product liability. Strict liability of the manufacturer is predicated upon use of the product ‘in a way it was intended to be used’ (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 64, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901). Here, Safeway's liability seems predicated upon its permitting use of the cart after it had fallen into disrepair—hardly an intended use. In that situation, it is arguable that the manufacturer would not be liable at all. If, however, Safeway were held to strict liability solely as a conduit between manufacturer and user, it seemingly would have a right to total indemnity by the manufacturer. The possibility of a Li allocation between two tortfeasors in a products liability case is neither raised nor briefed here, and I do not understand the opinion to seek to approve such allocation directly or by implication.

FOOTNOTES

1.  Section 875 reads as follows:(a) Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided.(b) Such right of contribution shall be administered in accordance with the principles of equity.(c) Such right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof. It shall be limited to the excess so paid over the pro rata share of the person so paying and in no event shall any tortfeasor be compelled to make contribution beyond his own pro rata share of the entire judgment.(d) There shall be no right of contribution in favor of any tortfeasor who has intentionally injured the injured person.(e) A liability insurer who by payment has discharged the liability of a tortfeasor judgment debtor shall be subrogated to his right of contribution.(f) This title shall not impair any right of indemnity under existing law, and where one tortfeasor judgment debtor is entitled to indemnity from another there shall be no right of contribution between them.(g) This title shall not impair the right of a plaintiff to satisfy a judgment in full as against any tortfeasor judgment debtor.Section 876 reads as follows:(a) The pro rata share of each tortfeasor judgment debtor shall be determined by dividing the entire judgment equally among all of them.(b) Where one or more persons are held liable solely for the tort of one of them or of another, as in the case of the liability of a master for the tort of his servant, they shall contribute a single pro rata share, as to which there may be indemnity between them.

2.  Civil Code section 1714 provides: ‘Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the title on Compensatory Relief.’

SCOTT, Associate Justice.

EMERSON, J.,* concurs.